When
you open a nicely laid-out hardbound book published by an ideological
publisher in screaming red, white and black, you know you're off the uptown
bus. That's not a bad thing in itself ... Simon and Garfunkle taught us
that the words of the prophet are written on subway walls and tenement
halls. But be on your guard. You're in a changing neighborhood where
you might find love or you might get mugged, depending on whom you meet.

Bombers, Bolsheviks and Bootleggers is an attempted literary mugging.
Author Leon F. Scully Jr. writes just like Karl Marx used to write, weaving
a superficial historical summary into a thundering, tendentious, but ultimately
entertaining piece of yellow journalism. It's worth reading, even if only
to expand by one the reader's personal list of books which, despite the
Constitution, it might be genuine fun to burn. That may not be
the most commendable sort of satisfaction for a conservative supporter
of the Bill of Rights to derive from his reading, but on the other hand,
one doesn't get the chance every day.

Scully's thesis is emblazoned on the promotional news release for the
book:

The Exclusionary Rule - A Fraud on the Fourth Amendment!

And on the back cover of the book itself it says:

Much has been written about the exclusionary rule the Supreme
Court has grafted onto the Fourth Amendment which forbids, in a criminal
trial, the use of evidence taken in an "unreasonable" seizure. Until now,
however, the clandestine maneuvering which brought this rule about has
never come to light. The author, a retired lawyer, has taken the
Supreme Court decisions that went into the formulation and development
of the exclusionary rule, placed them in their historical context, and
reached the astonishing but impeccably researched conclusion that none
was a genuine case or controversy, honestly arrived at.

Now, better legal minds than Scully's have wondered aloud if perhaps elevating
to a general principle the notion that illegally obtained evidence is hopelessly
tainted wasn't taking a good thing too far, but reputable jurists have hardly
gone farther than to respectfully dissent. As a principle, the exclusionary
rule is stare decisus and has saved many a good man or woman from
the loving arms of his or her helpful government. It's also responsible
for freeing not a few scoundrels. American Founding Father Thomas Jefferson
had rather 99 guilty go free than one innocent be punished, but today we
more or less dismiss Jefferson as a troublemaker whose ethic is too rigorous
for the slovenly mores of our times.

Be that as it may: in the year 1911, some labor union boys in the Midwest
and California got busy during a strike and financed a series of bombings,
some lethal, some extraordinarily lethal. Caught, convicted and mostly
confessing at their trials, it was true nonetheless that much of the evidence
in the case had been illegally obtained. Scully finds here the first breathing
together, the first conspiracy of the lawyers, which led to adoption of
the exclusionary rule in order that eventually the labor bombers could
be freed on appeal, and so that subsequently Bolsheviks might be left
loose to bomb America at will, at least those whose lawyers possessed
a knack for proper court procedure.

No Bolshevik conspiracy is complete without a Jew, here Louis Brandeis,
who became the first Jewish justice on the United States Supreme court
after appointment by President Woodrow Wilson. Brandeis was certainly
pro-labor, yet consistently and vigorously anti-Bolshevik, frequently
rebuking labor for its excesses and bearing labor's animus for his condoning
not the slightest tinge of lawlessness in the movement. No one would gather
such a thing from Scully's work; Scully's Brandeis is a brilliant schemer
who plots to unleash class warfare. After all, Brandeis mused in print
that illegality by the unions was perhaps stimulated to some degree by
the injustices suffered by the working men and women of early 20th Century
America.

Warren Harding and Calvin Coolidge come due for criticism in connection
within the "bootleggers" portion of the work. Administrations soft on
prohibition allowed the exclusion of tainted evidence to become a tool
of intramural power jockeying between Treasury and Justice. Here as elsewhere
the text is rife in facile and unsupported characterizations and the fallacy
of propositions presented as axioms. Scully writes not for the ages but
for the true believer. What for the impartial reader would be the apex
of a logical scaffolding is ground to the intended audience. Consider
this bizarre revisionist view offered of the noteworthy "Scopes Monkey
Trial":

What followed was no more a trial of a "case" or a "controversy"
than the moving picture Inherit the Wind was an accurate portrayal
of what really went on. Clarence Darrow and William Jennings Bryan were
no more adversaries than were Spencer Tracy and Frederic March: they were
just actors.

Well, yes, in the sense that all the world's a stage. In this case,
we are subsequently informed, the scripting of both sides was the work of
the American Civil Liberties Union. The ACLU plays in Scully's work a role
analogous to that played by the Brotherhood in Orwell's dystopic 1984,
the role of an undying conspiracy across the generations towards which straw
man can be diverted the frustration and anger of a deceived populace.

In the course of the book we wander overseas to trace the connection
between the communist revolution of Bela Kun in Hungary and the apparently
regrettable "downfall of Germany" (by which Scully means the abortive
and hideously suicidal Spartacist uprising of 1919). At home, a softhearted
and beatific Attorney General Mitchell Palmer, under whom even women who
distributed socialist literature received as much as 14 years in prison,
works night and day to save the radicals from themselves, urging pardons
left and right for them. Meanwhile, Justices Felix Frankfurter and Brandeis
plot how to create a climate in which Palmer's own house may be bombed
by a Bolshevik with impunity. Of course, the Soviet funeral for Big Bill
Haywood can't be omitted from the tale, though by now we've ranged pretty
far from the ostensible subject of the book, to wit, Fourth Amendment
litigation.

Regarding Fourth Amendment litigation, Roscoe Pound (there's a great
capsule appreciation of Pound at http://www.lexisnexis.com/academic/2upa/Aj/almPound.htm)
whose career at law spanning five decades made him America's leading expert
at criminological jurisprudence, wrote in 1914:

Immunity of accused persons from all interrogation, if they
are firm, well-advised and able to give bail, is a most effective shield
of wrongdoers. Knowledge of this tempts police and detectives and prosecutors
to lawless modes of getting what cannot be had lawfully ... Lawyers of
the last century were brought up on the doctrine of natural rights and
the conception that law exists to secure these rights to the individual
as against state and society ... Inevitably, they regarded protection
of the supposed right of the accused to every jot of procedural advantage
afforded him ... as a duty superior to protection from lawlessness.

Thinking of common-law rights as declaratory of natural rights
... has led to bad results in the attitude of courts toward legislation.
The courts have done more than enforce their ideas of economics ...
in passing upon the constitutionality of social legislation ... For
the training and bent of judges leads them to subordinate everything
to principles and general rules ...

But we must not infer that the contribution of eighteenth-century legal
theory is to be cast out utterly. ... Where the eighteenth- and nineteenth-century
American were willing to assert rights and justice even at a sacrifice,
today vindication of right and justice are generally, if not universally,
coming to be secondary to the trouble and expense involved ... An
active individual popular interest in justice, a fixed and constant
popular determination to secure for everyone his due is a prerequisite
of an effective legal system. The law may give effect to this determination.
It cannot create it. An easygoing attitude toward right and justice
bodes as ill for law as an easygoing attitude toward politics bodes
ill for government and administration. [emphasis added]

from The Spirit of the Common Law : The Rights of Man

Plus ça change ... Pound, the contemporary, says it all
for 2001 as well as for 1914. The exclusionary rule and its interpretation
from decade to decade is but a bellwether of the dynamic interplay between
the rights of individuals and the rights of society. That dynamic interplay
is central to maintenance of order in ours, the most open of all societies.
Scully, the modern, adds nothing more to the political puzzle than an
entertaining conspiracy theory, and nothing more to jurisprudence than
a insinuating posthumous attack on some of America's most brilliant and
beloved jurists and public figures. His polemical style can hardly be
recommended to truly conservative writers, who seek to shore up the validity
of social institutions in the interest of peace and prosperity rather
than tear them down in the hope of enraging the masses.

Jack Woehr of Fairmount, Colorado, has also written tendentiously in
his time, and felicitates author Leon F. Scully, Jr. upon the publication
of his book, which though suspect as history possesses great merit as
historical fiction.

To order a copy of Leon F. Scully Jr.'s Bombers, Bolsheviks and
Bootleggers : A Study in Constitutional Subversion, please visit Publius
Books at http://www.publiusbooks.com/